Michael Alexander Gutierrez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 11, 2024
• Docket: 02-23-00153-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-23-00153-CR ___________________________

MICHAEL ALEXANDER GUTIERREZ, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 1612004

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION

A jury found Appellant Michael Alexander Gutierrez guilty of two counts of

aggravated sexual assault of a child and assessed his punishment at thirty-five years’

confinement and a $10,000 fine for one offense and twenty years’ confinement and a

$10,000 fine for the other offense. The trial court cumulated the sentences. On

appeal, in Gutierrez’s sole point, he argues that the trial court abused its discretion by

overruling his objection and admitting evidence of sexual offenses that he allegedly

committed in Dallas County because the State had not given him the proper notice.

Holding that Gutierrez failed to preserve his complaint, we overrule his sole point and

affirm the trial court’s judgments.

I. Background

In the indictment, the State alleged that Gutierrez had committed four sexual

offenses against the complainant. During trial, the State determined that two of those

alleged offenses occurred in Dallas County, and it waived those counts. 1 The jury

1 The State waived counts two and four. The second count alleged aggravated sexual assault of a child by causing the mouth of the child younger than fourteen years of age to contact the defendant’s sexual organ. See Tex. Penal Code Ann. § 22.021(a)(1)(A)(ii), (a)(2)(B). And the fourth count alleged indecency with a child with contact by causing the complainant, a child younger than seventeen years of age, to touch the defendant’s genitals. See id. § 21.11(a)(1). The State waived both counts after jeopardy had already attached. See Ex parte Contreras, 640 S.W.3d 279, 282 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d) (“Jeopardy attaches when a jury is impaneled and sworn.”). The State waived count two shortly before reading the indictment to the jury and moved to abandon the fourth count right before resting its case.

2 found Gutierrez guilty of the two remaining counts, which occurred in Tarrant

County. 2

II. Complaint on Appeal

In Gutierrez’s sole point, he argues that the trial court abused its discretion by

overruling his objection and admitting evidence of sexual offenses that he allegedly

committed in Dallas County in violation of the notice requirement of Rule 404(b) of

the Texas Rules of Evidence. See Tex. R. Evid. 404(b). Gutierrez points out that the

State’s notice of its intent to introduce evidence of extraneous offenses identified the

Dallas offenses against the complainant but misidentified the date as July 2019. The

correct date was July 2018. Gutierrez concludes that although he had notice of Dallas

County offenses allegedly committed in July 2019, he had no notice of Dallas County

offenses allegedly committed in July 2018. We hold that he has not preserved his

complaint.

Before trial, in a hearing outside the jury’s presence, Gutierrez asserted that he

would not be objecting to the evidence regarding the Dallas County offenses: “And,

Judge, we want to make clear that we are not objecting to the -- to the Dallas County

case, only to the extraneous as to [a different complainant], the Bexar County case.”

2 The jury found Gutierrez guilty of counts one and three. The first count alleged aggravated sexual assault of a child by causing the defendant’s sexual organ to contact the sexual organ of a child younger than fourteen years of age. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (a)(2)(B). The third count alleged aggravated sexual assault of a child by causing the finger of the defendant to penetrate the sexual organ of a child younger than fourteen years of age. See id. § 22.021(a)(1)(B)(i), (a)(2)(B).

3 During trial, the complainant testified about the offenses that had allegedly occurred

in Dallas County. True to his pretrial representations, Gutierrez did not object to the

testimony regarding the Dallas County offenses.

Rule 33.1 of the Texas Rules of Appellate Procedure establishes the

requirements for preserving a complaint for appellate review. Tex. R. App. P. 33.1.

To preserve an appellate complaint, the record must show that the complaining party

made a specific and timely objection to the trial court and that the trial court ruled on

the objection. Id.; Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009).

Here, Gutierrez did not object to the complained-of testimony. We hold that

he has not preserved his appellate complaint. See Tex. R. App. P. 33.1; Lovill, 319

S.W.3d at 691. We overrule Gutierrez’s sole point.

III. Conclusion

Having overruled Gutierrez’s sole point, we affirm the trial court’s judgments

on counts one and three.

/s/ Dabney Bassel

Dabney Bassel Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: April 11, 2024